To what extent is the system of constitutional checks and balances an obstacle to effective government?

To what extent is the system of constitutional checks and balances an obstacle to effective government?

Checks and balances refer to specific powers each branch of the federal government possess to prevent one branch from becoming too powerful – such as the Supreme Court’s power of judicial review over the legislature and executive, the president’s ability to veto Congress’ legislation and Congress’ power to overridden Presidential vetoes. In order to have ‘effective’ government, the government must carry out some core functions such as legislate, provide effective defence, protect civil liberties and ensure state power and. However, as seen in recent years with the growing gridlock and infringement of civil liberties and states rights (according to the right), the system of checks and balances has hindered effective government.

One of the roles of the federal government is to effectively legislation, however, with increasing polarisation and the 113^th Congress going down in history as being the most polarised, the system of checks and balances has allowed for consistent gridlock to a point where 2013 was the least productive legislative year since 1948. It’s the role of legislature to ‘check’ the power of the executive and ensure it does not become too powerful, however, combined with polarisation this has led to consistent gridlock over legislation, particularly with regards to immigration reform. The Obama administration set out their aims in 2009 to achieve comprehensive immigration reform, however, legislating this has been hindered in recent years due to a range of congressional powers such as its ability to launch a filibuster and its ‘power of the purse’. This has led to legislation being slow and failing, as seen from the DREAM Act being filibustered to death in 2010 and the Gang of 8 bill being killed off by the House Speaker. However, the existence of checks and balances does not necessarily lead to ineffective government or gridlock because if Congress is gridlocked or obstructionist the President is free to initiate executive orders to circumvent Congress as seen by Obama’s one in November 2014 which sought to help five million illegal immigrants. However, even in this case constitutional checks remain and they hinder effective government, for instance, Congress has the ‘power of the purse’ whereby it is in charge of granting funding for the President’s executive order and this had hindered effective government when earlier this year the Department of Homeland Security came close to shutting down and the Texas legislature put Obama’s executive order on hold.

Another role of the government is to provide effective defence, however, this too has been hindered through checks and balances, thus preventing effective government. Congress passed the Case Act and War Powers Act during the 1970s to limit the executive’s role as Commander in Chief and prevent the President from becoming too imperial. Since Congress has the power to declare war, the president must seek approval before taking military action abroad. This prevents the president from effectively dealing with international crises, as he must wait for the approval of Congress and this check has led to a lot of criticism in recent events. With the threat of the Islamic State growing in the Middle East, Obama has had to submit reports to the Senate requesting more authorisation for military action in the Middle East, however, as a result the government’s response has arguably been slow. A CBS News poll found that only 54% of American’s are satisfied with President Obama’s response to ISIS. Similarly, the issue over the PATRIOT Act and Congress’ power of the purse has hindered effective government – with the Patriot Act set to expire on the 1^st June the House voted to continue funding it but in the Senate this vote was blocked by a filibuster. However, even such existing legislation like the War Powers is not an obstacle to effective government since the President does not always have to abide by it during a time of a huge crisis as illustrated by the 2011 Libya bombings whereby no congressional authorisation was granted to the President. However, Libya was an anomaly in the process and launching military action abroad without Congress’ approval rarely happens, today with ISIS Obama’s response has without a doubt been slow as a consequence of checks and balances put in place.

Another key function for effective government is to protect civil rights and liberties, however, this too has been hindered due to the system of checks and balances, which have allowed for civil liberties to be eroded through Congress’ ability to legislate. For instance, the clearest example is the Patriot Act, which according to many liberals (and some Republicans such as Rand Paul) is a clear infringement upon American’s citizens right to privacy – which is an established right under Griswold v. Connecticut – by enabling the NSA to conduct mass data collection programs of phone and internet data. The legislature’s attempts at renewing the law this year is a clear indication of how checks and balances can lead to civil liberties being eroded. However, checks and balances in this case can also provide for the protection of civil liberties. For instance, the Supreme Court’s check of judicial review on the legislature enables them to continue protecting civil rights as illustrated by US v. Windsor which struck down the Defence of the Marriage Act, thus allowing homosexuals to openly serve in the US Army and Hollingsworth v. Perry whereby California’s Proposition 8 (which sought to ban gay marriage) was struck down, both of these are instances of checks and balances protecting civil liberties which is key to effective government. The Citizens United and SpeechNow.org cases v. FEC are also other examples of rights and liberties being entrenched through judicial review. However, the Supreme Court is arguably stepping in too much due to judicial activists who are flaunting about judicial review excessively to a point where they’re acting as a quasi-legislative body, thereby hindering effective government and generating an image of an ‘imperial judiciary’.

Moreover, the protection of state rights and powers as detailed in the 10^th Amendment is fundamental to an effective government but Congress’ ability to legislate and the executive’s ‘check’ to tell Congress what to do through the state of the union has also hindered this according to conservatives. The passage of Obamacare, for instance, has been described by the right as being a clear infringement of state rights and is therefore unconstitutional as it can be viewed as the scope of federal government expanding too far to a point where control over health (a local issue) is being taken away from the control of states as it is forcing states to set up health care exchanged for the uninsured and expand Medicaid eligibility, all of which enforces the rhetoric of ‘government creep’. However, as with the argument illustrated above in this case too the system of checks and balances provides for effective government as through judicial review it can also lead to states rights being protected. For instance, in Shelby County v. Holder states rights were expanded by striking down Section 4(b) of the Voting Rights Act, thereby expanding states control over their voting practices and preventing the federal government from getting too involved. Federalism is indeed an important aspect to having effective government, but even judicial review can infringe upon states rights as illustrated by the 2012 Sebelius case which ruled that Obamacare was in fact constitutional (the right still argue its an infringement of states rights), and a further example includes US v. Arizona which struck down section key sections of SB 1070.

Finally, Congressional check on the President is Congress’ power to confirm all appointments made by the President. The president is in charge of nominating Supreme Court justices, some roles to the Executive Office of the President and departments within the federal bureaucracy such as the Central Intelligence Agency and National Security Agency. But, this is check is well known to lead to gridlock and so, prevent effective government. For instance, when John O. Brennan was nominated to be the director of the CIA Senator Rand Paul filibustered his appointment for 13 hours. On the other hand, although this is indeed a check, which without a doubt hinders government there, are other effective checks that allow the government to effectively function. For instance, the power of investigation is a check held by Congress over the executive (and federal bureaucracy) which allows Congress to investigate the actions of the executive and it’s various departments. This has proved to be very effective in recent events when the Senate Intelligence Committee investigated the CIA and it’s treatment of suspected terrorists which subsequently led to the release of the CIA torture report, revealing how the CIA have conducted secret operations in order to torture suspected terrorists. It’s important for the government’s actions to be scrutinised and open for transparency and through the power of investigation, this allows for an effective government to function.

As demonstrated above, the while in some cases the constitutional system of checks and balances can lead to an effective government such as through congressional oversight, other times it leads to gridlock between the branches. It can also lead to civil rights being eroded as well as states rights.

UK Judiciary Essays

Threats to Civil Liberties

Threat	Evaluation
EXCESSIVE POWERS OF PARLIAMENT – parliament has the ability to pass legislation that can potentially act against the liberties of citizens. Parliamentary sovereignty has allowed for an uncontained short term government.	Judicial Review was specifically put in place because of this. Public bodies can be prevented from acting against liberties and judges can rule parliamentary laws “incompatible” which tends to spark a debate for policy change.
WEAKNESS OF HR ACT – not entrenched, increasingly a threat as the Conservative aim to remove the Human Rights act for a British Bill of Rights. Also open to manipulation by parliament.	Supreme Court has used the HRA to strengthen the protection of citizens’ rights. Prior to this there were no positive rights. Policy has done a great deal to protect minorities.
NATIONAL SECURITY – Cameron said there cannot be 100% security and 100% privacy. The right to privacy is limited in favour for protection of national security. NSA scandal showed this.	Rights are protected by the Human Rights Act, the courts especially the ECJ whom have had a great deal of influence on UK law that UK judges have been willing to interpret.
LEGISLATION – linking to parliamentary sovereignty. Parliament can change laws which tend to limit citizens. this was evident from the limiting of trade union power, legal aid cuts, enhancing police powers after 9/11 and 7/7 etc.	As stated before, the courts have the ability to enforce public bodies to change policies.

Conflicts between executive and judiciary

CONFLICTS	EVALUTATION
SENTENCING – judges have the rule of dispensing justice at their own will but parliamentary sovereignty can often put pressure or force a court sentencing to go a certain way. Like Parliament changing the court’s interpretation of life in prison to make the Rigby killers get life. This conflicts with the idea of judicial independence.	The courts still have this power vested within. Most court decisions are made independently with the few exceptions of those that conflict with political interests. Mini conclusion – as judges become more politically involved it is evident that the executives and the courts will come into conflicts over sentencing.
JUDICIAL REVIEW – giving judges the ability to legislate from the bench. Judges have increasingly reshaped the political system since their independence was established. Parliament was against this and even debated to limit it. Legal aid cuts, Belmarsh case etc.	Judges are limited as they cannot initiate judicial review or enforce it on parliament. This ensures that the branches cannot directly limit another influence and conflict with another’s role. Mini conclusion – judicial review resulted in the changed within local government which parliament should control.
HR ACT & ECHR – the executive often criticises the judge’s willingness to accept laws from the ECHR and interpret the human rights act which has granted protection to criminals. Too much outsider influences that conflict with the agenda of parliament.	Human rights act is relatively weak because of its lack of entrenchment. The judges therefore have the ability to enforce the act as to where it is limited by the constitution which still allows for an effective parliament. Mini conclusion – domestic issues and parliamentary policies have been criticised by the judiciary against the act showing conflict.
SEPARATION OF POWERS – judges extend their powers onto politics, politicians extend their agenda onto the rule of law. These are separate institutions with conflicting goals over similar area of interests. Too much fusion has created too much problems.	Parliament has greater authority over the courts, being elected and accountable. There is therefore less practical conflicts. Mini conclusion – judicial independence has allowed for a powerful and uncontained court that is willing and able to conflict with the executive.
INTERPRETATION – having an uncodified constitution makes it very unclear as to how the constitution should be interpreted. Judges are arguably the protectors of the constitution but parliament is sovereign so…	This was one of the strengths of the HR Act. Drawing the line and avoiding potential conflicts.

To what extent is the Human Rights Act controversial?

Arguments For	Evaluation
Enhancing Judicial Power – judges have the ability to amend and create laws that parliament have the mandate to do. Judges are thought to be “legislating on the bench.” Forcing 80% of councils to look over their cuts in elderly care.	Parliament is still sovereign. The human rights act has only provided a great set of rights to rule by. Judicial power has been limited through legal aid cuts.
Political Influence – the human rights act has steamed greater than the protection of rights, it has shaped immigration, terrorist and asylum laws. Hist V. UK also shows the rights enforcing the right for prisoners to vote which is highly controversial and opposed by the government.	Parliament has opted into specific sections of the convention. The courts can then opt out of certain sections. Parliamentary sovereignty also demonstrates that some parts of the law can simply be ignored; prisoners still do not have their voting rights.
Outsider influence – public bodies are constraint by the beliefs of outsider influences on the UK’s constitution. The UK “should have its own set of rights” and “British Courts should be able to decide how the British legal system is operated” as stated by Prime Minister Cameron.	Parliament remains the supreme policy making body. The potential of the UK opting out of the convention shows how powerful parliament is over it.
Misinterpretation – the convention is believed to be used further than protecting rights but protecting criminals. The Belmarsh case and Abu Qatada whom all threatened national security but parliament was constrained by the human rights act.	The Belmarsh case which resulted in a change in law that allowed Parliament to detain without a trial shows how powerful parliament is over the convention with regards to criminals. Theresa Mae is also known for enforcing a great deal of pressure on the courts.
Not entrenched – the idea of safeguarded rights is a myth. Parliament can and does erode the convention and the possibility of the UK opting out of the convention shows how weak the human rights act is.	The Human rights can have protected rights for a long time now.

The filibuster

The Filibuster

Filibuster comes from the a Dutch word meaning 'pirate' and relates to an attempt by a minority within a legislative chamber to 'hijack' or delay a bill, thus blocking a vote. Only Senators has the power to launch a filibuster.

How does it work?
In order to delay a vote a Senator simply has to hold the floor. In practice, filibustering is physically demanding as the senator must remain standing and talking throughout, if they sit down the filibuster ends. Senators can team up with other Senators to continue with a filibuster. Storm Thurmond from South Carolina holds the records for the longest filibuster in history that lasted 24 hours and 18 minutes against the Civil Rights Act 1957.

• In March 2013 Rand Paul spoke for 12 hours and 52 minutes to delay a vote to confirm Obama's choice of CIA director John O. Brennan
• There have also been 'pseudo filibusters' which were not done to delay a vote but long speeches in protest of something: Ted Cruz in September 2013 spoke for 21 hours and 19 minutes against Obamacare, Bernie Sanders in 2010 also spoke out against Obamacare for 8 hours and 37 minutes

How does a filibuster end?

• The senator can simply sit down and relinquish the right to speak, but here it can also be prolonged by another senator who takes the floor to begin his/her own speech
• Senate majority leader may decide the issue is not worth spending so much time on, and abandon the bill under consideration
• The Senate can pass a cloture motion to end the filibuster which requires a three-fifths majority of the Senate (60 out of 100 votes) 

Do filibuster help or hinder democracy?

• Can be argued to enhance democracy as it protects the democratic right of groups to have their opinions heard (e.g. Wendy Davis's 2013 filibuster against a bill greatly restricting abortions for 10 hours)
• Tyranny of the minority but also prevents the tyranny of the majority
• Forces a president to seek 'consensus-building' - forces him to seek compromise and seek bipartisanship
• Legislation or appointments takes too long to pass and is sometimes completely abandoned as a result of a filibuster. Over 90% of George W. Bush's judicial nominees were successful compared to just 76% of Barrack Obama's - Obama has had in total 79 of his nominees to government agencies blocked whereas in the 60 years from 1949 to 2009 just 68 presidential nominees were blocked
• Obama's administration has had enough: In November 2013 Democrats in the Senate passed a rule change which allows for filibusters to be ended with a simple majority (51 out of 100 votes), this only applies to presidential nominations to the judiciary and government agencies
• Filibusters have been used to raise politicians profiles - such as Ted Cruz and Rand Paul who gained a lot of publicity

Checks and Balances

Checks and balances

‘Checks and balances’ refers to a process whereby each branch exercises control over the actions of the other branches of government.

Checks by the executive on the legislature

Through the State of the Union address in January of each year the President has the power to recommend legislation to Congress. The event is broadcasted on live TV, addressed to both Houses, cabinet members and the nine justices of the Supreme Court. The State of the Union address gives the President the opportunity to tell Congress what legislation to pass in order to lay out his legislative agenda. 2015 State of the Union address proposed increasing taxes for the superrich (decreasing for the middle class), strengthen ties with Cuba, plans on getting rid of loopholes and seeks to introduce legislation that will give Obama authorisation to use more force against ISIS. In addition, the president has the power to veto bills passed by Congress. So far Obama’s only used the power of veto twice. Obama made a statement during the State of the Union address that any attempts made by the Republicans in attacking healthcare or immigration reform will face a presidential veto.

Checks by the executive on the judiciary

The president nominates all federal judges (trial court, appeal court and Supreme Court). During his first term Obama made two appointments to the Supreme Court Sonia Sotomayor (2009) and Elena Kagan (2010). It’s important to remember that the appointments are made on the basis that the judges share a similar political outlook as the president; this enables the president to further their agenda for years to come. The second check is the power of pardon, which basically gives the president the power to excuse a person of their offences. Obama has only pardoned 53 people so far, the most recent one was Donna Wright in 2013, and her offense was embezzlement and misapplication of bank funds.

Checks by the legislature on the executive

The reason the legislature has so many checks on the executive is because the Founding Fathers seriously feared creating an all-powerful executive position that can lead to tyranny.

•      Congress can amend, block or reject items of legislation recommended by the president. In 2010, after being watered down to please opponents, Obama’s healthcare reform bill passed but was significantly less ambitious than had been anticipated. In 2011, Congress rejected Obama’s proposed job creation legislation
•      Congress can override a president’s veto. It requires a 2/3 majority in both Houses. None of Obama’s two existing vetoes have been overridden by Congress
•       ‘Power of the purse’ is a power granted to Congress which means that all the money the president wants to spend on his policies must be voted for by Congress
•      Congress has got the power to declare war – last time this power was used in 1941 on Japan. In 2002 Bush was granted authorisation from Congress to use military force in Iraq. House approved by 296-182 and the Senate 77-23
•       The Senate is also given the power to ratify treaties, requiring a two-thirds majority. In 2010 the new START Treaty with Russia was ratified by 71 votes to 26
•      The Senate has the power to confirm all appointments made by the President to the executive and federal judiciary. Executive appoints subject to the Senate’s confirmation include: cabinet members, ambassadors, heads of important agencies like the CIA and FBI. Only a simple majority is required for confirmation. And they have to also confirm judicial appointments
•      Power of investigation allows Congress – through its committees – to investigate the actions or policies of any member of the executive branch, even the president himself. In 2012 the House Oversight and Government Reform Committee launched an investigation of possible security failures by the Obama administration after the murder of four American diplomats in Benghazi, Libya
•      Under serious circumstances, the investigation can lead to impeachment, which enables the legislature to impeach (formally accuse) any member of the executive branch, including the president. Andrew Johnson (1868) and Bill Clinton (1998) are the only presidents to have been impeached so far. Once the House has impeached, the Senate will conduct the trial and if found guilty by a two-thirds majority, the accused person is removed from office. This is the ultimate check – the president holds no similar power – he cannot remove Congress

Checks by the legislature on the judiciary

•      Power of impeachment by the House of Representatives and then trial by the Senate, 2/3 majority results in removal from office. In March 2010, the House of Representatives impeached judge Thomas Porteous for corruption, the Senate found him guilty and he was removed from office that year
•      Congress can introduced constitutional amendments to overturn a decision by the Supreme Court. Congress has recently tried to reverse Supreme Court decisions in flag burning and public prayer

Checks by the judiciary on the legislature

•      Judicial review. The judiciary has the power to use judicial review to interpret legislation as being constitutional or not. E.g. Citizen's United case or just about any case whereby the Supreme Court ruled something being (un)constitutional

Checks by the judiciary on the executive

•      Same power of judicial review over the executive branch. Any action of a member of the executive can be deemed unconstitutional using judicial review